• by Wendy Davis  @wendyndavis, November 15, 2019

LinkedIn plans to ask the U.S. Supreme Court to review a ruling that requires the company to allow its site to be scraped by analytics company hiQ Labs.

The Microsoft-owned social networking service disclosed its plans in court papers filed Thursday with the 9th Circuit Court of Appeals.

LinkedIn is also asking the 9th Circuit to pause the lawsuit until the Supreme Court decides whether to hear the case.

The battle between the two companies began in May 2017, when LinkedIn demanded that hiQ stop scraping data.

hiQ gathers data from LinkedIn's publicly available pages, examines the information to determine which employees are at risk of being poached, and sells the findings to employers.

LinkedIn contended that hiQ's scraping violates the Computer Fraud and Abuse Act, a 1986 law that makes it illegal to access computer services without authorization.

LinkedIn sent a cease-and-desist letter to hiQ, prompting the analytics company to sue LinkedIn for allegedly acting anti-competitively. hiQ also sought a declaratory judgment that it wasn't violating the anti-hacking law, and asked for an injunction requiring LinkedIn to stop blocking hiQ.

LinkedIn countered that it has the right to control its servers, and that hiQ was disregarding LinkedIn users' privacy. The social networking service said more than 50 million people have used its "do not broadcast" tool, which enables users to change their profiles without having other users notified about the revision.

U.S. District Court Judge Edward Chen in the Northern District of California sided with hiQ and granted the company a preliminary injunction, ruling that its business could suffer irreparable harm if it couldn't access publicly available data.

LinkedIn then appealed, arguing that it's entitled to protect the data on its servers, and that hiQ has no valid antitrust claim.

Earlier this year, a three-judge panel of the 9th Circuit upheld the injunction, ruling that hiQ's scraping probably didn't violate the Computer Fraud and Abuse Act because LinkedIn profiles aren't password-protected.

LinkedIn now notes that other judges across the country have interpreted the the anti-hacking law differently -- which could factor into the Supreme Court's decision about whether to review the ruling.

“LinkedIn’s petition will raise substantial questions because the panel’s conclusion that the [anti-hacking law] does not apply to the scraping of public websites conflicts with numerous appellate and district court authorities,” LinkedIn writes.

The company also argues that the 9th Circuit gave short shrift to privacy concerns of LinkedIn's users by allowing hiQ to access their data without any obligations to respect users' decisions.

“hiQ has no contractual relationship with LinkedIn’s members limiting how it can share their data or requiring its deletion if a member so requests,” LinkedIn writes. “No contract prevents hiQ from selling member data to the highest bidder, or combining it with other data to create sophisticated profiles to facilitate identity theft or other unwanted behavior.”

The high-profile dispute between the companies has generated interest among outside watchdogs.

The digital rights group Electronic Frontier Foundation previously sided with hiQ, arguing in a friend-of-the-court brief that the criminal anti-hacking law was never intended to cover scraping data from public sites.

But advocacy group Electronic Privacy Information Center agreed with LinkedIn, arguing in its friend-of-the-court briefthat users didn't necessarily know their data would be acquired and used in material that was sold to their employers.